Board of Commissioners v. First Presbyterian Church

1. Dedication oe Lots, Good for Pious Purposes. The Wyandotte city company laid out the city of Wyandotte. On the plat made and filed appear three lots marked “church lots.” In the dedication written out on the plat, and duly acknowledged, these lots were said to be “dedicated to church purposes.” On the records of the company appears a resolution that these lots “be and the same are hereby appropriated as church lots.” Held, That whether this was a statutory dedication or not, it was good as an appropriation for pious purposes, which would be enforced at the instance of any church proving its right to be regarded as the personal beneficiary. 2. Intended Recipient, Parol Testimony Competent to Prove. Two of these lots were conveyed to separate church organizations. No conveyance was made of the third, but the plaintiff claims that it was appropriated to it, and for- its benefit. Held, That parol testimony of the acts and declarations of the managing officers of the city company is competent to prove that plaintiff was the intended beneficiary. 3. Church:, Not Estopped from Present Claim to Lot. There was at the time of the transactions named in the first paragraph of this syllabus, one and only one Presbyterian church in the city of Wyandotte. It had an organization, employed a pastor, and held services, but was not incorporated. It was a weak organization, of few members, and of small financial ability. From sometime during the war until 1881, it had no settled pastor, and only occasional preaching. Yet there was no formal giving-up of the organization, and in 1881 it became incorporated, and has since had a settled pastor. Held, That neither the feebleness of the organization, its failure to keep up continuous services, nor its lack of earlier incorporation, would estop it from a present claim to the benefits of the appropriation. 4. Presbyterian Church; Lot Unconditionally Appropriated. All the tracts dedicated as church lots, except the one in controversy, were conveyed to other churches. On the records of the company, and at a date subsequent to those of the resolutions granting the other lots, is a resolution that “a church lot be appropriated to the Presbyterian church.” This resolution appears by the records to have been made on the application of Mr. Goodrich, a member of that church. Subsequent application by parties representing other churches for this lot, were refused on the ground, as stated by the officers of the company, that it had been reserved and apppropriated to the Presbyterian church. A paper soliciting subscriptions for the building of a church was circulated by the pastor of this church, and subscriptions taken. This lot was spoken of as the site of the building, and plans discussed with reference to the peculiar slope of the ground. No conditions appear on the record in the above resolution granting a church lot to the Presbyterian church. The tract was never listed for taxation. Held, That a finding of the trial court that this lot was unconditionally appropriated and reserved to the Presbyterian church must he sustained..

Error from, Wyandotte District Court. Action brought by the First Presbyterian Church of Wyandotte against the Board of Commissioners of Wyandotte County and others, to obtain the title to and the sole possession and control-of a certain lot situate in the northeast corner of Huron place, in the city of Wyandotte, and designated on the plat thereof as a “church lot.” The petition alleged among other averments, in substance, that the lot in controversy was by the Wyandotte city company set apart and dedicated for church purposes,• and for no other purpose; that this company was the owner of said land; that the plaintiff aforesaid was the intended beneficiary for and to whom said church lot was so set apart and dedicated; that the title thereto, by virtue of said dedication, vested in the county of Wyandotte in trust for the use and benefit of the plaintiff for church purposes; that this dedication was unrevoked and irrevocable ; that Wyandotte county ever since such dedication has held the fee-simple title to said church lot in trust for plaintiff; that the defendants, the board of county commissioners, and Hiram Malott, James F. Johnston, and J. W. Wahlenmaier, as such commissioners, claimed title and possession of said lot by conveyance of September 8, 1868, from John McAlpine, formerly trustee of the Wyandotte town company; that the board of county commissioners had threatened, commenced, and were about to build a court house on said lot, in breach of the trust created for the benefit of plaintiff. Plaintiff prayed for an order enjoining the commissioners and their co-defendants from diverting said lot from the purpose for which the dedication was intended and made, and from erecting a court house thereon; that the deed of McAlpine to the board of county commissioners of date September 8, 1868, be declared to be null and void as against the rights of the plaintiff, and that the board of county commissioners — the county of Wyandotte — holds the title to said premises in trust for the use, benefit and enjoyment of the plaintiff, for church purposes; that it be decreed that plaintiff have the possession, use and enjoyment of said premises for church purposes, and that the injunction be made perpetual; and for other relief. A temporary injunction was granted by the district judge, at the beginning of the action. March 9, 1882, the motion of the defendants to dissolve the temporary injunction was argued at chambers, and overruled. March 18, 1882, the defendant board of commissioners filed its answer, admitting the allegations contained in the petition in the following particulars: The organization of the Wyandotte city company for the purposes mentioned in the petition (except the laying-off and dedicating of any grounds for the use of charitable, benevolent, religious, and church purposes, which was denied); admitted the making of articles of association; their record, the appointment of McAlpine, by letter of attorney, its trustee as alleged in the petition; that the town company, in pursuance of its organization, did locate a town site, and cause the same to be surveyed and platted, and then caused “the plat thereof to be executed and acknowledged and recorded, as in the petition set forth;” that upon said map or plat was marked and designated a certain public park or square, as described in said petition, and that in the corners of said public park or square were certain lots, marked and designated as charged in said petition, and that said Wyandotte company was the owner of said land;”...“ that Huron place, as shown by said plat, was, by said Wyandotte company duly dedicated to the public, except the lots and parcels of ground on the four corners thereof,” but denying that the lot on the northeast corner of Huron place was ever dedicated to church purposes, or that it was dedicated to or intended for the plaintiff. The defendant answering, claimed and asserted that it' has title in fee simple to the lot in controversy, under and by virtue of a deed of September 8, 1868, from John McAlpine, and admitted that it was in possession of said premises, and that it was its intention to build a court house thereon, and was about to do so. In reply, plaintiff denied each and every allegation and averment contained in the answer not averred or admitted to be true in the petition; and prayed for relief additional to that demanded in the petition. Trial at the April Term, 1882, when a jury was waived, and the cause tried by the court. Findings and judgment for the plaintiff. The Board alleges various errors, and brings the case to this court. Other facts are stated in the opinion. 1. There cannot be any “dedication” under our statute or at common law, for any church. ' If there was a dedication under the statute, it must have been under §1, or §6, or §11, of ch. 24; Comp. Laws 1862. From the necessity of the ease a town or city could not be available as such without avenues, streets, lanes, commons, and possibly some other public uses. But is a church an “other public use?” The use of the word “other” indicates that such “public use” is of the same character as to its public nature as those that are specifically named. Who can say that under the constitution, the laws of the state, or the policy of either, a church is a public institution to which the entire public alike have free and equal access? The constitution, the laws of the state and the policy of both alike forbid such a conclusion and perversion of legal terms. By the fundamental law of both the nation and the state, no man’s religion can be abridged, nor can his right of worship be restricted or interfered with by law. Nor can he “be compelled to attend or support any form of worship.” (U. S. Const., art. I of Amendments; Kas. Const., § 7 of Bill of Rights.) If a church is a “public use” then the public, as such, can be taxed for its support; and the public alike may all have a right to enter its portals. The state and the church are completely and, let us trust, forever divorced. The constitution of this state provides that the title to all church property shall vest in the trustees, “whose election shall be by the members of such corporation.” (Kas. Const., art. 12, § 3.) This absolutely precludes all idea that a church or its edifice can be a “public use.” Those who control the use of this “corporate” property, viz., the trustees, have the absolute dominion over the ownership, control, use and disposing power of the same. It would be unjust to deny them the right to use the fruits of their own means and labor. They may forbid all but their own communicants from the use of such ground or edifice. Then why call it public? The constitution calls churches (what they are in nature) “corporations” — surely not public, or municipal, but private “corporations.” Hence we say that a church lot or house is not a public use. Clearly such was not in the minds of those who drafted the section in question; and by the use of the phrases “for public purposes” and “other public uses,” the legislature evidently intended such other public easements the use of which is open alike to all who conduct themselves and measure their conduct according to police regulations. Besides, the maxim, Expressio unius, exclusio alterius, may be invoked as giving sanction to this view. The legislature has named the easements, and has thereby excluded all others not of a public character. The common law sanctions no dedication to anything that . is not for a public use. (Bouvier’s Law Diet., Dedication, and authorities there cited; 14 Kas. 312.) But it may be said, as it was in the court below, that a church lot or building may be, and is, for a “public use,” and that authorities sustaining that view can be found. While it is true that a portion of the public attend church worship, that fact certainly does not make the place of such worship a public place, any more than would the fact of the attendance of a portion of the people upon saloons make such places of resort also public. So may not the attendance of a portion (or even all) of the people upon other public resorts, places of public amusement, or channels and arteries of commerce, be claimed with greater force and reason to be public? But such is not the criterion that makes such places of resort appropriated or rather “ dedicated ” for public uses. It is the absolute, unrestricted and equal right of all alike to go to a public place for amusement or entertainment, unrestrained except by police regulations, that constitutes such place public; and then only when such places may be kept up by public contribution. But it may be said that this court is bound by the decision in the case of Hannibal v. Draper, 15 Mo. 634, as our state adopted the statute of Missouri, with the construction given it by the supreme court of that state. We say, no; for the reason that our organic law forbids the conclusion that a county can hold the fee in land dedicated for a church use (as it must under the opposite view), but such fee must be in the trustees of the church corporation. (Kas. Const., art. 12, §3.) 2. The town company, in platting the ground in suit, intended only that such ground should be appropriated for church lots to such church as might upon application agree with the proprietor to either purchase or take as a gift, the same, and erect such valuable improvement thereon within such time as the proprietor and the church might agree upon. By the terms of the statute under which the defendant in error bases its claim to the ground, the record of the plat does not sanction its unfounded claim of being an unconditional promise that it should be the absolute and unconditional owner of the northeast corner of “Huron place,” or in fact of any other corner of the same. The records of the town company, made very soon after the plat was made, and long before it was acknowledged, show that while “a lot” was intended for the New School Presbyterian church, yet no particular lot was selected, designated, or in any way appropriated to it unconditionally. The evidence of the defendant in error alone may be a sufficient warrant for this conclusion. 3. There was no acceptance of the proffered grant by the defendant in error, before its revocation. Upon this point, we rely upon the allegations of the defendant in error, in its petition, as well as on the evidence. It is true the petition avers that it duly accepted the grant, but of the time and manner of such acceptance it pleads ignorance; but there is an entire absence of any evidence tending in any degree to prove that it even accepted this property before suit was brought. 4. Conceding that the defendant in error has a trust estate in the property in suit, or that a trust estate was intended to be created by the town company in. 1857, yet we say that such estate fails, for two reasons: First, the same is void as to the defendant in error, since it had no existence for twenty-four years from the time of its creation; second, the same is void because of the uncertainty of the intended beneficiary. The evidence shows most clearly that if any trust was intended for any particular church, it was the “New School” Presbyterian church. The evidence is undisputed that there never was such a church in Wyandotte, until 1881. While there need not be a beneficiary in being at the time of the creation of the trust, yet a voluntary executory trust may be revoked before acceptance by such beneficiary. (2 Story’s Eq. Jur., §972, and note 4; 32 Mich. 279; 37 id. 291; 14 Kas. 316.) Three things are indispensable to constitute a valid trust: First, sufficient words to raise it; second, a definite subject; third, a certain ascertained object. (2 Story’s Eq. Jur., §964.) This asserted estate lacks all these essentials. It lacks sufficient words in this, among other respects, that our statute prohibits the creation of express trusts except they be in writing. (Comp. Laws 1862, ch. 109, §1.) If a trust estate is to arise from the act of the town company, such act lacks a definite subject. There is no particular •church named. Besides, the dedication must be either of record, or parol. If by record, as is contemplated by the statute in relation to the platting of towns, then the beneficiary should be indicated in said plat. (2 Iowa, 27.) If a trust was created, it was a voluntary executory trust. As nothing •of value passed from the defendant in error to the town company, it was a donation. A court of equity will not enforce such a trust. (2 Story’s Eq. Jurisp., §§ 975, 975a, and note 3; 2 Perry on Trusts, § 870.) The plat does not disclose the beneficiary. The parol testimony introduced for this purpose shows that conditions were imposed which have not been performed, and hence there is an executory trust which will not be enforced. From the parol evidence on the trial, as well as> from the record evidence and the town plat, the intended beneficiary is vague and uncertain; and no particular person or body who could enforce the use of the property is pointed out. Such uncertainty is ineffective for the transfer of the estate. (2 Iowa, 27.) In this case, unlike the Iowa case, there were the Methodist Episcopal church, the Methodist Episcopal church south, the African Methodist Episcopal church, the Catholic church, the Universalist church, the St. Paul’s Episcopal church, and the Congregational church, each proven to have had an organization in the city of Wyandotte during the time that this lot was waiting for an owner. A deed which does not name the grantee, is ineffective to pass title; and if there be no grantee in being at the time of the conveyance, the same is void. (3 Washb. Real Pr., 4th ed., 263, 266.) The petition is demurrable because there is no allegation that the plaintiff accepted the dedication before its revocation in 1868. (4 Fed. Rep. 161; 56 Mo. 166; 2 Dillon on Mun. Corp., § 636.) 5. There could be no dedication of this land by the town company for any purpose, because it was not the “proprietor ” or owner at the time of the alleged dedication. The title was in the United States; therefore the land was public land, and §11 of ch. 24, Comp. Laws of 1862, governed. The town company, not being at common law the owner, could not dedicate for any purpose. (2 Dillon on Mun. Corp., § 635, and note, and § 636.) The court below, after hearing a vast amount of evidence tending to show no title in the town company, which evidence was offered for the avowed purpose of showing that fact, and for no other purpose, without excluding such evidence, refused to allow the plaintiff in error to amend in this particular and conform its pleadings to the evidence, notwithstanding its authority so to do. It does seem to us that this was a gross abuse of the discretion of the court, which demands a reversal for this reason alone. 6. The court below erred in admitting parol evidence to show the intent of the town company in making what the defendant in error claims to be a statutory dedication. For if the making and filing of the plat constituted such dedication, then such plat should show the dedication, and the beneficiary. (21 Mich. 340-342; 2 Wharton’s Ev., §§1173,1174, and notes; 14 Kas. 273.) 7. We submit that the numerous authorities cited in the printed opinion of the court below have no bearing on the question before the court; and in this category we include Franklin Co. v. Lathrop, 9 Kas. 453. But Hannibal v. Draper, 15 Mo. 634, is an exception to this statement, as it is an anomaly in principle. (See Xiques v. Bujao, 7 La. An. 449.) 1. The dedication of the lot in controversy for church purposes was proven by the recorded plat of the city of Wyandotte, and the explanatory notes and indorsements written thereon. This was documentary and not parol testimony. 2. The assignment of error that “the court erred in admitting parol testimony for the purpose of proving a dedication by the town company to the defendant in error of the .lot in controversy,” does not fairly state the purpose for which parol testimony was offered by the plaintiff and received by the court. The dedication was established by documentary evidence. The beneficiary was identified by both documentary and parol testimony. The plat, with its explanatory notes, acknowledgment and record thereof, constitutes a complete statutory dedication. Counsel for plaintiff in error say that if there was a dedi- ■ cation under the statute, it must have been under either § 1, § 6 or § 11 of ch. 24 of Comp. Laws of 1862.- This dedication could not have been made under §11, because at no time, since 1842 at least, has the land in controversy been public land as claimed by counsel. This law was borrowed from the statute of Missouri in 1855, where it was in force as early as 1835, and has continued in force in that state to the present time without material change. Section 8 of the statutes of Missouri (Revised Statutes 1855, ch. 158, pp. 1535, 1536, 1537) corresponds to § 6 of the statutes of this state on this subject, and provides that the map or plat shall convey the fee of all streets and alleys, and lands and lots, marked or set apart thereon for public purposes or uses, which shall vest in the county in trust for the uses and purposes for which the dedication was intended. This section has been construed by the supreme court of Missouri in the case of City of Hannibal v. Draper, 15 Mo. 634, old edition, (new edition, p. 406,) which is a case very similar to the case at bar. In Reid v. Board of Education, 73 Mo. 295, the court held that under the statute in relation to town plats, the mere filing for record of a plat, duly acknowledged, vests in the public the fee of land intended to be dedicated to public use. See also Bayliss v. Board of Supervisors, 5 Dillon, 549, 556; 36 Mo. 332; 60 id. 591; 27 id. 211; 9 Cranch, 292; 18 Ohio, 22-28; 9 id. 80; 6 Pet. 431; 33 N. J. L. 13; 18 Ohio St. 226; 1 id. 496; Comm’rs of Franklin Co. v. Lathrop, 9 Kas. 463. A church lot or building may be and is for a public use. A church is a public place to which the public are invited, a place from which no proper person or number of persons, on proper occasion, can be excluded, except for cause. Yet it is necessary that churches should be under the control of persons who will be at the expense of keeping them in repair, and in condition for all of the public who may desire to attend there for public worship. A public square or park is under municipal control, regulation, and restriction as to its use by the public. The one is maintained by forced contri-, butions from the public by taxation, the other by voluntary contributions from those of the public who choose to contribute thereto. Where the dedication is in its terms absolute, it is of course limited by the nature of the use to which it is given. Thus, land dedicated for the burial of the dead cannot be used for a highway. So a dedication of grounds for church purposes cannot be diverted from such purpose and used for a court house. Dedications to pious uses, such as glebe land, or land for the erection of a church, for the use of a non- existing churchy or for the burial of the dead, are upheld. (2 Wait’s Ac. and Def., p. 7l0; Beatty v. Kurtz, 2 Pet. 566, 5.83; Mankato v. Willard, 13 Minn. 18.) Property may be dedicated in writing, or by parol, to municipal, public or charitable uses, such as church squares or lots, for a burying ground, for markets, for public buildings, for school purposes, and for purposes of recreation or ornament. (2 Dillon on Mun. Corp., §§ 648, 650.) In many of the states, a dedication may be made by laying down and describing streets, public landings, squares, and other tracts set apart for public, charitable, educational, and religious uses, on the plan of the town, and then recording such plan. (2 Wait’s Ac. and Def., p.713; 12 Minn. 204; 23 Ind. 527; 18 Wis. 118; 31 Mo. 393; 24 Iowa, 234; 16 La. An. 404; 3 Oreg. 126; 3 C. E. Green, 282; 15 Mo. 406; 60 id. 591; 73 id. 295.) 3. The plat was executed and acknowledged by John McAlpine, the trustee of the town company, who was duly and expressly authorized thereto by the company by a written power of attorney duly executed and acknowledged by each of the members of the company, September 28, 1859. But even if there should be found some slight irregularity in the execution and acknowledgment of the plat, it is cured by the pleadings. (14 Kas. 246, 247; 73 Mo. 295; 5 Dillon, 546, 549.) 4. Where a plat is made and recorded, the requisite intention to dedicate is generally indisputable. But the intention may also be established by parol evidence of acts or declarations which show an assent on the part of the owner of the land that the land should be used for public purposes. (2 Dillon on Mun. Corp., §636, and cases cited; 7 Ind. 641; 9 B. Mon. 200.) The intention to dedicate the ground in controversy to church purposes cannot be questioned, for it is so expressed on the plat and in the explanatory notes.. There is no evidence in the case showing that the appropriation of this lot to the Presbyterian church was made on any condition whatever, either then or at any time, whatever conditions may have been imposed on others; and the fact appearing in evidence that conditions of improvement were expressed in appropriations to other churches, and no such conditions were attached to this one, raises a strong presumption that no such condition was intended by the proprietors making the appropriation-to the Presbyterian church. This presumption is strengthened by the evidence that at least three of the members of the town company were themselves Presbyterians. This presumption must stand until overcome by direct evi- dence that conditions were imposed, and no such evidence exists in this case. Parol evidence is admissible to identify the' beneficiary. (9 Am. Dec. 588; 8 id. 714; 12 id. 188, 189; 60 Mo. 594; 2 Dillon on Mun. Corp., § 636, and cases cited.) The testimony of various witnesses shows repeated declarations by the members and officers of the Wyandotte town company, when in the transaction of its business, that this lot in suit was intended for the Presbyterian church of Wyandotte. A formal vote of acceptance is not necessary. (2 Dillon on Mun. Corp., § 632.) Acts and circumstances indicating an acceptance or intention to accept on the part of the beneficiary are sufficient to constitute an acceptance, and these may be proven by parol. A complete dedication by map held not revocable, although not accepted. (33 N. J. L. 13; 30 Iowa, 94. See also 35 Cal. 489, and cases cited; 2 Dillon on Mun. Corp., § 636; 73 Mo. 304, 305.) The church at Wyandotte was composed from its first organization of members of both of these branches of the Presbyterian church. Can it be doubted that the defendant in error is the legitimate and regular successor, and in the direct line of succession, to the first Presbyterian church organized in Wyandotte city about 1857? It was not necessary that such church should be incorporated. There being an association of persons who elect officers and proceed with the duties of the organization, constitutes a corporation defacto, and proves user. A subscription made to a religious corporation prior to the proper organization of such corporation, inures to the benefit of the company thereafter created, and payment may be enforced. (4 Am. Cor. Cases, 370; 66 111. 55; 17 id. 54; .26 id. 41; 49 id. 417; 32 id. 79.) The defendant in error was incorporated in May, 1881. Such incorporation, or the want of incorporation, will not be permitted to defeat the evident purpose and intention of the dedication. Under the statutes of Kansas in force when this dedication was made, and subsequently, it was provided that a church, congregation, religious society, etc., might receive lands by purchase or otherwise, and might take by purchase, grant, or devise lots or tracts of land, etc. (Laws of Kansas, 1857, pp. 5, 6; Laws of 1858, oh. 74, §§ 1, 2.) Such dedication of property partakes of the nature of a dedication to charitable uses; and these have frequently been upheld by courts of equity. (55 Ind. 297; 35 id. 198; 9 Am. Dec. 581; 5 Harris & J. 392. See also 7 Am. Dec. 99; 10 Barb. 23; 2 How. 127; 64 Pa. St. 169; 30 id. 437; 83 Pa. St. 206; 2 Dillon on Mun. Corp., §437; 5 Ind. 297; 54 id. 419, 549.) Gifts to churches, societies, conferences, yearly meetings of Friends, families of Shakers and other organizations have been upheld. (2 Perry on Trusts, § 730.) The exact name of the beneficiary is not essential. In some cases where a beneficiary is mentioned by a name — as in the resolution of the town company, in this case — and one is found not exactly in all points similar in name, but so alike in its objects that there can be little doubt that it was intended, it may receive the benefit of the request. And parol evidence is admissible to ascertain such beneficiary. (52 N. Y. 191; 9 Am. Dec. 587, 588; 2 Dillon on Mun. Corp., §636.) 5. The defendant in error has shown a complete statutory dedication by map. Such dedications are held not revocable, although not accepted. (33 N. J. L. 13; 30 Iowa, 94; 2 Dillon on Mun. Corp., §653.) There has never been any attempt on the part of the Wyandotte city company to revoke the dedication. The town company could not revoke the dedication after September 28, 1859, the date of the acknowledgment and record of the plat. (33 N. J. L. 13; 30 Iowa, 94; 2 Dillon on Mun. Corp., § 640, and eases cited in note 2, and § 653; 49 Tex. 347; 18 Ohio St. 221; 1 id. 478; 8 Ind. 378; 9 Kas. 453; 2 Story’s Eq. Jurisp., § 1520a, and cases cited.) A dedication, when made and accepted, gives an absolute interest which the owner of the land cannot recall or'revoke. (2 Wait’s Ac. and Def., p. 714, §7; 6 Vt. 355; 10 Pet. 662; 1 Wharton [Pa.] 469; 27 Mo. 211; 18 Ohio, 18; 8 B. Mon. 247; 1 Sneed, 632; 9 Iowa, 455; 12 Minn. 200; 6 Bush, 680.)